International Transport Law - Essay Example

Introduction: peculiarities of international transport law For anyone who is not familiar with the particularities of international transport law, it may appear strange that it is important to distinguish between the varied modes of transport and establishing laws or regulations ( Moriniere, "AIR and Road Transport” 1-3). In fact, the peculiarity presented by the contract of carriage is slightly overshadowed by specific legal regimes applicable only to some modes of transport. Similarly, the mandatory rules or regulations of liability have been restricted to matters relating to the carriage such as liability for damage or loss of the goods (Moriniere, “Hague-visby rules” 3-5). It also concerns liability of delay in delivery of goods leaving out issues and matters of greater importance for the end users, such as shipment delay, the failure to perform contractual obligations as well as the right of remuneration for carriers. Conventionally, particular legal regimes, relevant to varied modes of transport, have resulted in some problems in the transport sector. While at the beginning clients would be contented to conclude a particular contract of carriage by ship, air, road, or rail, it is currently owing to the advancement of international carriage of goods, often inappropriate, whether one mode or usage of different modes to move the goods from point to another is used ( Carr and Stone 374). Therefore, a client may be contented to conclude an agreement where there is an unspecified mode of transport. In this case, it has to be considered whether the contract will have to be carriage sui generis or international convention will have to apply. In fact, major problems have emerged due to varied misunderstandings at different international conventions. Another key challenge relating to multimodal transport relates the fact that varied forms of transport may be integrated into a single contract of carriage. This paper discusses the aspects that have led to the lack of adoption of the provisions of international conventions. In the latter part, I will base the discussion on effect of hybrid regimes on international conventions. Part A: Different waves of reforms a) International conventions The process started in the 1880s with the drafting of a model bill of lading with the intention of offering a compromise between conflicting vessel and cargo interests. Although these efforts were not very successful, they were significant for a number of reasons, some of the provisions passed were entrenched into the Hague Rules (Moriniere, “Hague-visby rules” 3-7). The Hamburg Rules offered a structural platform for later unification attempts, all of which, instead of taking model clauses, took the form of uniform rules. Although some countries that participated in the earlier conventions favored these rules, they were not as successful because they were considered biased and unresponsive to the needs of international transport and trade. This is evident in the way the final reforms were undertaken in the 1970s. Developing countries were discontented with the uniform carriage rules as they appeared outmoded, ineffective, and prejudiced in favor of carrier interests particularly from developed countries. In addition, they involved a contributory cause of unreasonably high transport and insurance costs. The other conflict involved the arbiter. Earlier, parties relied on the Maritime International Committee, but its resolutions were resisted. This made members to rely on the United Nations Conference on Trade and Development. However, again, its resolutions were met with resistance with some members, especially from the developed world, terming it a political tool. They later moved the negotiations to the United Nations Council on International Trade Law, which was termed less political. From the outward appearance, the Hamburg rules were important in the sense that they represented a break from the past. However, these rules, just like others in previous conventions, were not highly adopted by many states. In fact, since they came into force in the early 1990s no key maritime jurisdictions have executed them. Mainly, this is due to lack of uniformity in international laws relating to transport and trade; it is further impacted by the conflicting methods adopted by different countries to give domestic laws to the uniform regimes. In fact, some countries have ended up treating the International Conventions as self-executing, or have executed the relevant global text directly by giving it some force of law. Other states have managed to rewrite the provisions reached during international conventions to be in line with their domestic standards. b) Politicization of conventions The other explanation is that the entire process of reforming the transport sector has been highly apprehensive and politicized. In fact, there is no single reform provision or proposal put forward that has not been controversial. For instance, the Hamburg Rules have practically been controversial making it hard for countries to adopt them. Fundamentally, the process of reformation has progressed at a very slow speed ( Carr and Stone 374). This is mainly due to the reliance on international conventions to yield mandatory uniform rules. It must be understood that the process used to adopt any international convention is very slow and amending it can take a very long time. The controversial nature and different attitudes of members have also contributed to their delay and blockage at certain stages. However, the convention on contracts for the international sale of goods is considered successful because all countries were taken into consideration. It has been able to unify legislative achievements, especially in international sales law (Moriniere, "Transport Documents" 8-9). Mainly, this is due to its flexibility in permitting different states that are party to the contract with the option of taking some exceptions to certain articles. In fact, this flexibility has been influential in convincing countries with disparate legal regimes to subscribe to a more unified international law. Part B: Challenges facing international conventions a) Hybrid Regimes The failure of the conventions is also attributed to the formation of hybrid regimes. Different states applying hybrid regimes have argued that they generate uniformity that is lacking at the moment. A good example of these regimes is the Nordic hybrid regime. Members have argued that the regime promotes uniformity by unifying the transport laws adopted by member states. Equally, this acts as an impediment to international law on transport as the Nordic international transport stem from international or outside the Nordic region. This means that the laws cannot even to steering all the movement of goods within the region. The other reason is that aggressive unilateral adoption of hybrid regimes is likely to create the environment in which an international compromise can be developed. This is true to some extent. History shows that very strong domestic laws can eventually produce the pressures needed to bring or force the international community to reach a uniform resolution. When America adopted the Harter Act, and other countries followed, the mounting pressure led to the creation of the Hague Rules. However, in as much as they appear attractive, the hybrid regimes do not bear any analysis. To begin with, unlike the previous Harter Act, the processes adopted for hybrid regimes are very different. In fact, the hybrid regimes differ considerably in both substance and structure, and do not seem to agitate uniformity in international laws. To say the least, the idea that states have been adopting divergent regimes only serves to negatively affect the international uniformity of transport laws. b) Increased confusion Because of the long geographical distance, most international transport systems involve a number of modes. Another reason for this could be the difficulty to have a physical continuity between member states. Thus, transport chains must be set up to service some flows that support the significance of intermodal transportation terminals and modes at strategic points. These factors led to international conventions with the aim of finding a lasting solution to problems they face. Nonetheless, the subsequent principles of international conventions still derive directly from the traditional standards. That is, whilst uniform legal instruments influence a wide array of issues in the transport sector, some key provisions are still not uniform or in tandem with the spirit of internationalism. This is partly because each country wants to ensure that its domestic laws are more superior to what others have; this eventually affects the implementation of the provisions of international conventions. The fundamental thing is that the trend towards hybrid regimes is detriment to international uniformity and raises some fundamental questions to international law. Countries that have domesticated hybrid regimes are also party to the international conventions. In short, there is no way the hybrid regimes adopted by most countries can be reconciled with the provisions of international conventions. In fact, it is like double standards. States that have adopted hybrid regimes whist remaining parties to international conventions are violating their responsibility of good faith. In fact, countries applying hybrid regimes have formalized transport laws in a way that seeks to impose higher restrictions on carriers. This undertaking alone is detriment to the provisions of Article 10 of the Hague-Visby Rules which aims to remove any restrictions on outward carriages. Works Cited Carr, Indira, and Peter Stone. International Trade Law. New York: Routledge, 2013. Print. Moriniere, Jean-Michel . "Transport Documents." International Law, Diplomacy and International Relations 3 (2014): 1-17. Moriniere, Jean-Michel . "AIR and Road Transport International Conventions." International Law, Diplomacy and International Relations 1 (2014): 1-34. Moriniere, Jean-Michel. "Hague-visby rules 1924-1968." Maritime Transport International Conventions 2 (2014): 1-52. Print. Shara, Sayed. "International Transport Laws." International Transport Laws (2014): 1-30. Print. Read More